Volume 58, Issue 1 - October 2005

From Winship to Apprendi to Booker: Constitutional Command or Constitutional Blunder?

The Supreme Court has a remarkable history of blunders and retreats when it comes to the relationship between the Constitution and substantive criminal law, and it is in the process of committing another one, in our view. There are at least eight instances in which the Court has handed down a case with dramatic potential to subvert substantial parts of the criminal law, only to later more or less withdraw from the field...